B-1 in Lieu of H-1B Memorandum
As a preliminary summary, the B-1 visa category allows foreign businesspersons to enter the U.S. for temporary periods to conduct business. The B-1 visa category activities are like those authorized under the visa waiver business visitor category and therefore lend itself well to an analysis of both visitor types.
Activities considered authorized fall under three basic rules:
- The employee cannot engage in “productive employment,” defined to include both salaried work and work as an independent contractor.
- The business activity must be associated with international trade or commerce.
- The principal benefit of the activity must accrue to the applicant’s employer abroad.
A sampling of activities which are typical for the business visitor include the following:
- Activities of employees of a foreign employer coming to the U.S. to solicit sales, negotiate contracts, or take orders from established customers from work that will be performed outside the U.S.
- Activities of a purchasing agent for a foreign employer coming to the U.S. to procure goods, components, or raw material for use outside the U.S
- Activities of employees of a foreign company coming to the U.S. with regard to service or sales contracts already undertaken by their company.
- Activities of an employee of a foreign-based company or office of a U.S. company coming to the U.S. to engage in consultations with the U.S. business associates.
- Activities of foreign businesspeople attending professional or business conferences or conventions, or executive seminars.
- Activities of business employees or independent businesspeople coming to the U.S. to undertake independent research, such as market or product research, not directly connected with sales or service contracts or the solicitation of business.
- Activities of foreign investors coming to the U.S. to take steps to set up their investment.
- Activities of employees of a foreign employer coming to the U.S. to undertake an established training program.
The government has recognized that there are times when an individual is needed in the U.S. in valid B-1 status while performing duties that are necessarily considered work. To consider the work allowance while maintaining the B-1 strictures limiting what kind of work can be done, the B-1 in lieu of H-1B visa category was created.
The H-1B visa is a work-authorized visa category for a foreign national who is coming to the U.S. to fill a professional position, that is one that requires as its minimum educational requirement a bachelor’s degree or equivalent work experience related to the offered position. There are a limited number of H-1B visas made available each year by the USCIS, and there are wage attestations and requirements imposed by the Department of Labor on this visa category. To obtain an H-1B visa, a sponsoring U.S. employer must file a Form I-129 petition with the USCIS in the U.S. and receive an H-1B approval notice from the USCIS for a specific validity period before the foreign national can come to the U.S. and work in H-1B status.
The B-1 in lieu of H-1B hybrid visa category retains the essential spirit of the H-1B visa category in that the individual coming to the U.S. must be coming to perform duties in a position that would have the bachelor’s degree requirement. Where this category differs from the H-1B is that there are no wage requirements and attestations involving the Department of Labor, and the individual is considered anchored to a foreign employer and not to a U.S. employer. The individual must be coming to the U.S. to perform duties in the U.S. that are essentially for the benefit of a foreign employer. The foreign employer must continue to pay the individual’s wages and costs while the individual is in the U.S. and would continue to consider the individual a salaried employee abroad while in the U.S. It is critical to note that the individual must not receive remuneration from a U.S. source for activities performed in the U.S.
The sponsoring employer can bypass a filing of a petition with the USICS, and the individual needed in the U.S. applies for the B-1 in lieu of H-1B visa stamp directly at a U.S. Consulate abroad. The B-1 in lieu of H-1B visa is considered for short-term durations only based on short-term business needs of the employer abroad’ s required activities in the U.S., but the visa can be issued for as long as one year.